San Francisco judges are not known for playing ball with ICE.
In nearly two dozen other U.S. cities, the federal government has been running a startlingly effective deportation playbook: Attorneys from the Department of Homeland Security are asking immigration judges to dismiss migrants’ cases outright.
Normally, that’d be a good thing for immigrants, akin to when a prosecutor drops charges in criminal court.
But once their cases are dismissed, immigrants have few legal protections — allowing ICE agents to swoop in after hearings and begin expedited removal proceedings.
That wasn’t flying in San Francisco. When DHS attorneys sought to dismiss cases last week, judges stonewalled them, thwarting the federal government’s strategy that has worked effectively elsewhere.
So ICE made a change. Facing growing pressure from the Trump administration to turbocharge arrest counts, agents began using a lesser-known tactic to take immigrants into custody without a judge’s approval, detaining four individuals Tuesday.
Known as custody redetermination, the process is typically used when immigrants pose a flight risk or public safety threat. Vanessa Dojaquez-Torres, practice and policy counsel at the American Immigration Lawyers Association, said she’s aware of ICE deploying custody redetermination in only one other city, Chicago.
“They want these arrest numbers up,” Dojaquez-Torres said, referring to reports that DHS is under pressure from senior White House officials to more than triple their daily arrest count. “So they’re going for this low-hanging fruit in order to do that.”
It’s unclear whether DHS believed any of the four immigrants arrested Tuesday in San Francisco presented a risk to the public. ICE has not identified them or responded to questions about why they were seized.
Milli Atkinson, who leads immigration defense for the San Francisco Bar Association, said judges did not dismiss any of the four cases.
The Standard identified one of the immigrants detained as Luan Nascimento de Almeida of Brazil.
ICE records show Nascimento de Almeida is being held in a private detention facility in McFarland, California, and his next hearing is Aug. 12 in San Francisco. He has no criminal record in any of the nine Bay Area counties or federal courts.
Experts say it’s unsurprising that ICE resorted to custody redetermination in San Francisco.
Judges here are generally considered immigration-friendly and grant a higher percentage of asylum claims than anywhere else in the country except the East Bay city of Concord, according to The Standard’s analysis of data compiled by the Transactional Records Access Clearinghouse.
“Judges in San Francisco understand the requirements for asylum and apply them more accurately,” said Bill Ong Hing, a professor and associate dean at the University of San Francisco School of Law.
ICE will soon face a problem, though. Custody redetermination may not help ICE deport immigrants, because all the agency can do is hold them until their next court date.
Even when judges dismiss cases, as they have elsewhere, immigrants who’ve filed asylum claims can circumvent expedited removal proceedings if they pass what’s known as a credible fear interview. That would put their court cases back on track.
Additionally, immigrants’ attorneys can file for bond hearings, which could release clients from detention if a judge rules they don’t pose a flight risk or safety threat. However, Dojaquez-Torres accused ICE of whisking detainees to faraway lockup facilities, making it difficult to identify the right court for a bond filing.
“These officers are afraid for their jobs if they don’t get detention numbers up,” Dojaquez-Torres said.
Critics say the arrests are meant to bolster detention counts while simultaneously scaring immigrants away from showing up to court. It may be working.
Multiple San Francisco attorneys said immigrants skipped hearings this week. In at least one case, a judge issued a deportation order because the respondent didn’t show.
Lorena Melgarejo, executive director of the social justice group Faith in Action Bay Area, said there is a risk that immigrants could be detained while attending their hearings, but at least then their attorneys and advocates can more easily track their cases and whereabouts.
“If they don’t show up to court, immigration will show up to their house and basically disappear them,” Melgarejo said.
Jonah Owen Lamb contributed reporting.